Who's Spying on You?

Yesterday, the Washington Post published the latest installment in its “Top Secret America” series, an ongoing investigation into the costly and expansive security buildup in the United States following the September 11, 2001 attacks. Mike German, ACLU Policy Counsel and a former FBI agent, appeared on Countdown with Keith Olbermann last night to discuss the article:

If you follow the ACLU’s Spy Files work, the Post’s latest piece, “Monitoring America,” which documents and maps surveillance efforts taking place at the local level, will look familiar. The article describes the vast, domestic intelligence-gathering efforts that have become standard practice for the FBI, military, state and local law enforcement, and state homeland security offices.

Even those of us who work full-time to shed light on domestic surveillance practices never cease to be amazed at new revelations about the scope of mass surveillance and the degree to which it has become one of the government’s principle counterterrorism strategies. And the government’s surveillance activities are not directed solely at suspected terrorists and criminals, they are directed at all of us. Increasingly, the government is engaged in suspicionsless surveillance that vacuums up sensitive information about innocent people. In keeping with that trend, the Post’s description of this ever-growing intelligence network — a web of 4,058 federal, state and local organizations, each with its own counterterrorism responsibilities and jurisdictions — is startling.

Costly & Countereffective: Suspicious Activity Reporting

The ACLU has long said, and many experts agree, that such surveillance efforts undermine Americans civil liberties without being proven effective. Instead, they create bigger mountains of information about innocent people that law enforcement and intelligence officials must sift through in order to find true threats. Furthermore, this surveillance often takes place in secret, with little or no oversight by courts, by legislatures, or by the public. And without any clarity about the effectiveness about these methods, it is impossible to weigh both the financial cost and the cost to our liberties.

For example, over the last few years, federal, state and local authorities have initiated Nationwide Suspicious Activity Reporting Initiative (SAR) programs, which encourage law enforcement officers, intelligence and homeland security officials, emergency responders, and even the public to report the “suspicious” activities of their neighbors to law enforcement and intelligence agencies. Reported information ends up in the "Guardian" database maintained by the FBI.

One key problem is that many of the behaviors these SAR programs identify as precursors to terrorism include innocuous and commonplace activities — all of which any tourist might engage in — such as using binoculars, taking pictures, and taking notes. As Mike German says in the Post article, such a program “opens a door for all kinds of abuses. How do we know there are enough controls?"

Based on publicly available information, clearly there is nowhere near enough control over the inclusion of wholly lawful and constitutionally protected activity in SAR reporting. For example, the website of the Tennessee Fusion Center includes a “suspicious activity report” that is actually just a news report about the ACLU of Tennessee's effort to guard against religious discrimination in public schools.

The Post article also quotes Philip Mudd, a 20-year CIA counterterrorism expert and a former top FBI national security official who stated that programs like the Guardian database are “really resource-inefficient.” Mudd added: "If I were to have a dialogue with the country about this...it would be about not only how we chase the unknowns, but do you want to do suspicious activity reports across the country?...Anyone who is not at least suspected of doing something criminal should not be in a database."

Charles Allen, a longtime senior CIA official who went on to lead the Department of Homeland Security's intelligence office until 2009, also affirmed that senior people in the intelligence community are skeptical that SARs are an effective way to find terrorists. Allen stated, "It's more likely that other kinds of more focused efforts by local police will gain you the information that you need about extremist activities."

In fact, those who administer the databases themselves admit that the system is inundated with useless information. Richard Lambert, Jr., the special agent in charge of the FBI’s Knoxville office is quoted in the article as stating, “[n]inety-nine percent doesn't pan out or lead to anything.”

Such attitudes beg the question: should we be willing to trade liberty for the mere appearance of security? We at the ACLU certainly don’t think so, and we’re doing everything we can to raise awareness about costly, inefficient domestic intelligence programs that violate our privacy and don’t make us safer.